Quimby v. DCYS

• Court: District Court, D. New Hampshire
• Decided: December 20, 1995
• Docket: CV-93-351-B
• Status: Published

Opinion

Quimby v. DCYS CV-93-351-B 12/20/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert W. Quimby, as Administrator of the Estate of Christal Quimby

v. Civil No. 93-351-B

Division for Children, Youth and Families, et al.

MEMORANDUM AND ORDER

Robert W. Quimby, Administrator of his daughter Christal's

estate, brings suit against the New Hampshire Division for

Children, Youth, and Families ("DCYF")1, its deputy director,

Robert Pidgeon, and three DCYF case workers, Lorelei Duguette,

Mimi Wheeler, and Wendy Robertson. The case arises from injuries

Christal sustained after being sexually assaulted by her foster

father, Christian Telles. Quimby bases his claims on 42 U.S.C.A.

§ 1983 and state negligence law. His § 1983 claims allege that

the individual defendants violated Christal's right to

substantive due process by placing her in the Telleses' home and

1 Prior to 1994, the DCYF was known as the Division for Children and Youth Services. N.H. Rev. Stat. Ann. § 212:2 (Supp. 1994) . allowing her to remain there in reckless disregard of the serious

risk that Christal would be harmed by the placement. Quimby also

alleges that all of the defendants negligently failed to prevent

Christal's injuries. The defendants have moved for summary

judgment on all counts. For the following reasons, I grant

summary judgment in favor of the defendants on the § 1983 claims,

and decline to exercise supplemental jurisdiction over Quimby's

state law claims.

I. BACKGROUND

The three Quimby children, Christal, Coreen, and Robert,

were removed from their mother's home in 198 9 following

allegations of abuse and neglect. In November 1989, DCYF placed

Christal, age fourteen, and Coreen, age sixteen, in a licensed

foster home operated by Christian and Carol Telles in

Somersworth, New Hampshire. Coreen was allowed to move in with

her grandmother in the summer of 1990 after she complained about

the placement. Christal was left with the Telleses.

In February 1991, Christal was removed from the Telleses'

home after she became pregnant and made statements suggesting

2 that Telles was the baby's father.2 Despite protective orders

and a bail order, Telles continued to contact Christal.3 In

August 1992, Telles and Christal were involved in an automobile

accident in which Christal was killed.

II. STANDARD OF REVIEW

Summary judgment is appropriate only if the facts taken in

the light most favorable to the nonmoving party show that no

genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st Cir. 1994). On

issues where the nonmoving party bears the burden of proof, the

moving party initially need only allege the lack of evidence to

support the nonmoving party's case. Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). The nonmoving party cannot rely on the

pleadings alone to oppose summary judgment, but must come forward

with properly supported facts to demonstrate that "the evidence

2 Christian Telles was later convicted of sexually assaulting Christal. State v. Telles, 139 N.H. 344 (1995).

3 Quimby does not claim that any of the defendants violated Christal's constitutional rights after she was removed from the Telleses' home.

3 is such that a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). I apply this standard in addressing defendants'

motion.

III. DISCUSSION

Duguette, Wheeler, and Robertson argue that Quimby cannot

maintain his substantive due process claims against them because

the evidence does not demonstrate that they acted with reckless

indifference.4 Robert Pidgeon also contends that he cannot be

4 Quimby bases his substantive due process claim on the theory of liability described by the First Circuit in Germany v. Vance, 868 F.2d 9, 18 n.10 (1st Cir. 1989), which allows a plaintiff to assert a claim against a governmental official who acts with reckless or callous indifference to the plaintiff's protected liberty or property interest. In Younqberq v. Romeo, 457 U.S. 307 323 (1982), the Supreme Court held that a profoundly retarded institutionalized adult could assert a substantive due process claim against his governmental caregivers if the caregivers' actions were "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." After Younqberq was decided, the court ruled in Daniels v. Williams, 474 U.S. 327, 331 (1986) and Davidson v. Cannon, 474 U.S. 344, 347 (1986) that a substantive due process claim cannot be based on mere negligence. Neither the Supreme Court nor the First Circuit has addressed the Younqberq standard in light of Daniels and Davidson. Moreover, those courts that have considered the guestion have come to differing conclusions. Yvonne L. v. New Mexico Pep't of Human Servs., 959 F.2d 883, 894 (10th Cir. 1992) (following Younqberq

4 liable pursuant to § 1983 because Quimby's evidence is

insufficient to establish supervisory liability. All of the

defendants join in attacking the sufficiency of the evidence

supporting Quimby's state law negligence claims. I begin by

considering Quimby's substantive due process claims against the

caseworker defendants.5

standard on the grounds that it was similar to "deliberate indifference" because it "implies abdication of the duty to act professionally"); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1144-47 (3d Cir. 1990) (holding that Younqberq standard must be applied to all professional employees working with institutionalized retarded individuals while deliberate indifference standard applied to nonprofessional employees); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 852-54 (7th Cir. 1990) (noting that neither negligent nor grossly negligent conduct is actionable and following Younqberq standard); Feaqlev v. Waddill, 868 F.2d 1437, 1440 (5th Cir. 1989) (rejecting a "Younqberq exception" to the rule stated in Daniels and Davidson); Estate of Conners v. O'Connor, 846 F.2d 1205, 1208 (9th Cir. 1988), cert, denied, 489 U.S. 1065 (1989) (holding that Younqberq standard is eguivalent to gross negligence and falls within the Daniels and Davidson rule). Since Quimby does not base his due process claim on Younqberq, I need not determine its applicability here.

5 I assume without deciding that the defendants had a sufficient affirmative duty to protect Christal to subject them to liability for a properly supported substantive due process violation. Compare K.H. ex rel. Murphy, 914 F.2d at 848-499 (child who is sexually assaulted by foster parent has a cognizable due process claim against caseworkers) with Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 991 (1st Cir. 1992) (voluntarily admitted mental patient lacks a cognizable due process claim against caregivers with knowledge of patient's suicidal tendencies).

5 A. Substantive Due Process - Caseworkers

As I noted in my orders of March 31 and August 19, 1994, the

First Circuit Court of Appeals has determined that "government

officials may be held liable for a deprivation of life, liberty,

or property without due process if their conduct reflects a

reckless or callous indifference to an individual's rights."

Germany v. Vance, 868 F.2d 9, 17-18 (1st Cir. 1989); accord

Febus-Rodriquez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir.

1994); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.

1990); Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 227 (1st

Cir. 1990). In explaining this standard, the court has stated

that it is

appropriate to view 'reckless or callous indifference' not as a heightened degree of negligence (akin to 'gross negligence'), but rather as a lesser form of intent. An intentional violation of a person's constitutional rights occurs if the official desires to cause such a violation or believes that his or her conduct is certain to result in such a violation. A recklessly or callously indifferent violation occurs, in contrast, if the official believes (or reasonably should believe) that his or her conduct is very likely (but not certain) to result in such a violation.

Germany, 868 F.2d at 18 n.10; accord Febus-Rodriquez, 14 F.3d at

91; Torres Ramirez, 898 F.2d at 227.

6 Quimby alleges that the caseworkers were recklessly

indifferent to the strong likelihood that Christal would be

injured if she remained with the Telleses because they either

knew or reasonably should have known that: (1) Christian Telles

had an undisclosed criminal record; (2) he had had his drivers

license suspended after being deemed a habitual offender because

of numerous traffic violations and at least two convictions for

driving while intoxicated; (3) he was an alcoholic and a former

drug user; (4) he had been hospitalized for an unspecified mental

problem; (5) he had been verbally and physically abusive to other

children in his custody; (6) the state of Maine had rejected the

Telleses' application for a foster care license; (7) another

child had been raped while in the Telleses' custody; and (8)

Telles had been physically abused by his father. Quimby supports

this argument by offering evidence that most of the adverse

information he cites either was contained in Telles' DCYF

licensing file or was known to other DCYF officials. He also

offers an affidavit from a former DCYF caseworker who opines that

"a caseworker is not in a position to perform her job

responsibilities unless she is knowledgeable and up-to-date

regarding material in the licensing file."

7 Notwithstanding Quimby's contrary assertions, he has failed

to support his claim that the caseworkers were aware of any

adverse information concerning the Telleses before they learned

of Christal's pregnancy and removed her from the Telleses' home.

Quimby cannot establish that the caseworkers reviewed the

Telleses' licensing file merely by offering an affidavit from a

former caseworker who claims that a reasonable caseworker would

have inspected the file before placing Christal with the

Telleses. Since he offers no other evidence on this point, he

cannot rely on information contained in the file to support his

claim that the caseworkers acted recklessly.

Quimby's contention that the caseworkers were reckless

because they unreasonably failed to discover the adverse

information is egually unavailing. Reckless indifference in this

context reguires evidence either that a defendant actually

believed that her actions were very likely to result in injury or

that a reasonable person in the defendant's position would have

believed that injury would very likely occur. Germany, 868 F.2d

at 18 n.10. Quimby does not allege that any of the caseworkers

actually believed that Telles was very likely to assault

Christal. Nor has he offered any evidence to support his claim

that they reasonably should have known that Christal would very likely be injured if they allowed her to remain with the Telleses

without first reviewing the licensing file. Defendants cannot be

held liable for a substantive due process violation on a failure

to investigate theory.

I now turn to the other evidence Quimby relies on to support

his substantive due process claims against each of the caseworker

defendants.

1. Lorelei Duquette

Lorelei Duquette filed the abuse and neglect petition on

behalf of the Quimby children in October 1989 and signed the

consent agreement on behalf of DCYF providing that Coreen and

Christal would be placed "in a licensed foster home, as arranged

by DCYS." Duquette's duties also involved placing the girls with

the Telleses in November 1989. Quimby offers no evidence to

suggest that Duquette was aware of any adverse information about

the Telleses' background when she placed Christal in their home.

Therefore, he has not produced enough evidence to allow a

reasonable factfinder to conclude that Duquette was recklessly or

callously indifferent to Christal's constitutional rights.

2. Wendy Robertson and Mimi Wheeler

Wendy Robertson and Mimi Wheeler were family service caseworkers for the Quimby girls. Robertson worked with them

from March until November 1990 when Wheeler assumed responsi­

bility for the children. Taking the facts in the light most

favorable to Quimby, the following circumstances provide the most

compelling support for his claims.

Problems arose with the girls' placement for the first time

in the summer of 1990. Robertson's notes for that period

indicate that the girls were not getting along with Carol Telles,

that Carol was jealous of them, that the Telleses were fighting

about the girls, and that Carol Telles had called DCYF "ranting

and raving" about Coreen and stating, without further explana­

tion, that Coreen was breaking up their marriage. Robertson's

notes state that she wanted to get both girls out of the

Telleses' home and that "[t]hings are bad at the Telleses."

Notwithstanding her concern, Robertson only moved Coreen.

Mimi Wheeler became Christal's caseworker in November 1990.

Wheeler's notes state that her first contact with Christal was

for a supervised visit between Christal and her mother on

November 9. The notes also indicate that during a visit with her

mother in December, "C[hristal] stated that she wants a baby."

Christal's pregnancy and sexual relationship with Telles came to

light two months later.

10 Quimby does not contend that either Wheeler or Robertson

actually believed that Christal was very likely to be harmed if

she were left in the Telleses' custody. Therefore, the question

I must answer is whether a rational trier of fact could conclude

from the evidence presented that either defendant reasonably

should have believed, based upon what they knew about the

Telleses, that Christal was very likely to be injured if she were

allowed to remain with them. Although responsible persons in the

defendants' positions might well have been concerned about

Christal based on the problems she and Coreen were reportedly

having during the summer and fall of 1990, and although that

concern might well have been heightened by Christal's comment to

her mother about wanting to have a baby, careless and unreason­

able actions are not necessarily reckless. Quimby's evidence in

this case fails to meet the standard required for a substantive

due process violation even when the evidence is construed in his

favor.

B. Substantive Due Process - Supervisory Liability

Robert Pidgeon was Deputy Director of DCYF from 1986 until

1994. Quimby argues that Pidgeon is liable as a supervisor of

11 others who violated Christal's constitutional rights.6 As I

noted in my March 31, 1994, order, a defendant cannot be held

liable on a § 1983 claim based upon a respondeat superior theory.

Febus-Rodriquez, 14 F.3d at 92 (citing Guitierrez-Rodriquez v.

Cartegena, 882 F.2d 553, 562 (1st Cir. 1989) . Instead, a

plaintiff must establish that (1) the defendant's subordinates

violated the plaintiff's constitutional rights, and (2) an

affirmative link existed between the defendant's supervisory

activities and the subordinates' behavior in the sense of

"supervisory encouragement, condonation or acguiescence" or

deliberate, reckless, or callous indifference to a violation of

the constitutional rights of third persons. Hegartv v. Somerset

County, 53 F.3d 1367, 1380 (1st Cir.) (guoting Lipsett, 864 F.2d

at 902-03), cert, denied sub nom Hegartv v. Wright, 1995 U.S.

LEXIS 8635 (U.S. Dec. 11, 1995); Febus-Rodriquez, 14 F.3d at 92.

Quimby's claim against Pidgeon fails on both counts. First,

as I have already noted, Quimby has not adeguately supported his

substantive due process claim against any of Pidgeon's sub­

ordinates. Second, even if Pidgeon's subordinates had violated

Quimby does not assert that Pidgeon is liable in any capacity other than as a supervisor.

12 Christal's constitutional rights, Quimby has failed to demon­

strate that an affirmative link existed between Pidgeon's

supervisory responsibilities and his subordinates' unconsti­

tutional actions.

In an effort to support his claim, Quimby relies on

Pidgeon's interrogatory answer in which he was asked to explain

all of his contacts with the Telleses. His answer states, "I

attended no meetings with Mr. and Mrs. Telles. At one time, I

discovered that licensed capacity in that home was exceeded, and

instructed staff to bring home into compliance. This probably

occurred in 1989 or 1990." From that answer, Quimby concludes

that Pidgeon was reguired "to ensure the home meets all DCYS

reguirements." Extrapolating from the presumed responsibility

for licensing, Quimby also presumes that Pidgeon had actual or

constructive knowledge of the Telleses' licensing file.

Pidgeon states in his affidavit that he held a policy­

making and supervisory position far removed from decision-making

concerning the licensing of foster care facilities and the

placement of children. He denies any involvement in the

licensing of the Telleses' home, any contact with the Telleses,

and any knowledge of matters that would have disgualified

Christian Telles as a foster parent. He explains that his only

13 information about the Telleses was that there had been a change

in the number of children allowed under their license, which they

were exceeding due to court ordered placements, and that they had

a reputation as a placement that would accept difficult teen­

agers. These allegations are unrefuted.

Despite Pidgeon's involvement in reducing the number of

children in the Telleses' home, there is no evidence that he had

responsibility for foster home licensing. The fact that he

ordered compliance with a licensing reguirement that came to his

attention in one instance does not establish his general respon­

sibility for licensing or his particular responsibility to review

all of the Telleses' licensing reguirements. Quimby has not

presented evidence that Pidgeon ever saw the licensing file, knew

its contents, or had a legal duty to see the file, update its

information, or review the Telleses' foster care license during

the relevant period. Quimby also has not shown that Pidgeon

knew, or should have known, from any other source that Telles

presented a substantial risk of harm to children placed in his

home. Further, the record contains no evidence to suggest that

Pidgeon condoned, acguiesced in, or showed deliberate

indifference to a subordinate's conduct and thereby caused

improper licensing of the Telleses or improper placements there.

14 Accordingly, Quimby cannot maintain a supervisory liability claim

against Pidgeon.

C. Pendent State Law Tort Claims

The first five counts in Quimby's complaint state negligence

claims against DCYF and each of the four individual defendants.

Having granted summary judgment for the defendants on Quimby's

§ 1983 claims, I decline to exercise supplemental jurisdiction

over the pendent state law claims. See 28 U.S.C.A. § 1367(c)(3)

(West 1993) .

IV. CONCLUSION

For the foregoing reasons, defendants' motion for summary

judgment (document no. 38) is granted as to counts VI through IX.

Counts I through V are dismissed without prejudice.

SO ORDERED.

Paul Barbadoro United States District Judge

December 20, 1995

cc: Charles Douglas, Esg. Nancy Smith, Esg.